Jee Foo Realty Corp. v. Lemle

259 A.D.2d 401, 687 N.Y.S.2d 103, 1999 N.Y. App. Div. LEXIS 2803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1999
• Status: Published

Opinion

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 8, 1998, which granted defendants’ motion to dismiss the complaint for failure to timely serve the complaint and denied plaintiffs cross motion for leave to serve the complaint more than 20 days after service of the demand therefor, unanimously affirmed, without costs.

The grant of defendants’ motion to dismiss was proper since plaintiff failed to make the requisite showing, in support of its cross motion for leave to serve its complaint more than twenty days subsequent to defendants’ service of their demand therefor, that it had a reasonable excuse for its delay and a meritorious cause of action (see, CPLR 3012 [b]; Wess v Olympia & York Realty Corp., 201 AD2d 365). The record does not support plaintiffs claim that its delay was in part caused by defendant sellers’ failure to respond to its requests for information. Defendants did in fact respond in a definitive manner, and plaintiff thereafter made no additional inquiries, letting four months pass between service of the summons with notice and the verified complaint. Further, plaintiffs bare allegation that defendants knew of a latent defect in the conveyed premises is insufficient to make out a prima facie claim for fraud based on active concealment (cf., Stambovsky v Ackley, 169 AD2d 254); the necessary allegation that defendants affirmatively thwarted plaintiff purchaser’s performance of its obligation, pursuant to the doctrine of caveat emptor, diligently to inspect the premises for defects, is completely absent from the complaint (see, London v Courduff, 141 AD2d 803, lv dismissed 73 NY2d 809). Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.